Tag Archives: European Arrest Warrant

Fahrid ChishtySecond year undergraduate student and Dickson Poon Scholar of the LLB in Politics, Philosophy & Law (PPL) at King’s College, London

The European legal order is beset by an unprecedented challenge today. Domestic nationals, prevailingly of Western European origin, are engaged at the centre of ideological conflicts in Iraq and Syria in increasing numbers. Against the backdrop of sectarian conflict and the proliferation of terrorist networks, European ‘foreign fighters’ pose a significant threat, upon return, to the security and prosperity of their Member States (MS) of origin. National governments have enacted legislation in recent months in order to stem the tide of European fighters leaving and re-entering Union or State territory, accentuating the need for a collaborative and synergetic regional strategy. This article assesses the impediments, actual and potential, to the prevention and prosecution of foreign fighter criminality in the Middle East region (ME) under European Union law. It identifies potential lacunae in the law, concluding with the case for EU-wide legislation facilitating the arraignment of foreign fighters consistently across MS, as proposed by Gilles De Kerchove, Brussels’ Counter-Terrorism Coordinator (CTC), at the Commission in December 2014.[1]

Under the Anti-Social Behaviour, Crime and Policing (ABCP) Bill, substantial reform of the European Arrest Warrant (EAW)’s implementation in the UK is promised.[1] Simultaneously, the European Parliament is pressuring for EAW reform at the European level.[2] To analyse these reforms, a seminar chaired by John Spencer (University of Cambridge), with Anand Doobay (Peter and Peters), Libby McVeigh (Fair Trials International) and Helen Malcolm QC (3 Raymond Buildings) on the panel, took place in London on 9 December 2013.[3]

The Framework Decision on the EAW (FDEAW) attempts to simplify and streamline extradition proceedings between Member States (MS) through the principle of mutual recognition.[4] This means that an EAW must be executed within strict time limits, subject only to limited exceptions; most notably, states cannot refuse to extradite their nationals, and for 32 core offences, there is no requirement of dual criminality.[5]

Although a success on its own terms, with average extradition time falling from nine months to 43 days, the FDEAW’s mutual trust is premised on states having faith in their neighbours’ justice systems.[6] This faith is not always justified, and judicial dialogue has become increasingly strained over two problems: first, fair trial standards in issuing states[7]; second, EAWs issued for trivial or old crimes.[8] How, though, can rights be protected without undermining the EAW’s efficiency gains and integrative aims?

The seminar began by analysing Theresa May’s reforms, contained in the ABCP and the recent Crime and Courts Act, which purport to answer this question.[9]

The Forum bar

This is the first headline reform. Under the forum principle, a state may refuse to extradite where it considers itself to be the most appropriate forum for a trial. In response to the (American) McKinnon case, the Crime and Courts Act 2013 introduced a forum bar for all extraditions, including EAW ones.[10] This does not breach the FDEAW.[11]

‘Much ado about nothing’, however, is how Spencercharacterised it. Its background arouses suspicion. In introducing this reform, the government ignored the simple forum bar enacted (but never brought into force) by Labour in 2006.[12] It further ignored the conclusions of the Scott Baker report, which it commissioned: this concluded that a forum bar would constitute a ‘backward step’, both slower and more litigious than the current prosecutorial negotiations that decide forum; nor would it have helped McKinnon.[13]

This suspicion is confirmed by the provision, which is as complex as it is weak. Both the EU and continental courts are frequently lampooned as slaves to inflexible codes of labyrinth complexity. Yet, Spencer continued, the EAW’s forum bar provision is 57 words long; the French, a mere 32; the UK’s, by contrast, contains a monstrous 1,496 words.[14] The reason for this length is its highly prescriptive and restrictive nature: it has a narrow, exhaustive list of ‘interests of justice’, requires a ‘substantial part’ of the crime to have occurred in the UK, and can be removed from the Court’s hands altogether by a non-judicially reviewable CPS certificate. It is the UK, then, whose judiciary is constrained by a code which is much weaker than it appears, where the French enjoy simplicity and significant judicial discretion.

Whilst this criticism is mostly persuasive, Doobay added one interesting caveat. The perpetual problem with a forum bar was that whilst the extraditing court may rule that the UK is the most appropriate forum, it cannot order a prosecution. If none resulted, the accused would gain de facto immunity. The CPS certificate, then, could be used to ensure extradition is not forum-barred where no UK prosecution is likely.[15]

The Proportionality bar

The EAW is not intended for trivial offences; consequently, the offence must be punishable by at least 12 months’ custody (four months for a conviction warrant).[16] Doobaypointed out, however, that this threshold can prove ineffective: theft of a pencil is theft, and so exceeds the threshold, even though extradition would be manifestly disproportionate. Similarly, whilst the Commission hopes that discretion by the issuing state can solve the problem, the reality is that prosecutors are highly uneven in their use of this discretion.[17] Executing states are growing restless at their inability to refuse plainly disproportionate warrants.[18]

Moreover, as a matter of principle some proportionality review must occur in the executing state. The public interest in extradition must be balanced against the accused’s human rights, particularly under ECHR[19] Article 8. In HH, Malcolm noted, the Supreme Court had set out how this balance should be struck.[20] Yet, Doobayargued, only the executing court can judge this: the issuing court has no knowledge of the accused’s situation. Even where the issuing state has acted properly, then, an executing proportionality bar should exist.

The UK already has a limited form of proportionality review: where the ‘passage of time’ makes extradition unjust or oppressive, it is barred.[21] May’s second headline reform would add an explicit, general proportionality bar for all accusation warrants.[22]

Whilst all agreed that a proportionality bar was necessary, the panel criticised the proposed bar. First, it is highly restrictive: only the offence’s ‘seriousness’, its ‘likely penalty’, and the availability of ‘less coercive measures’ may be considered.[23] Malcolm noted that human rights must be implied as a further consideration, else there would be nothing to weigh these factors against. For McVeigh, the list should be expanded to include the expense and human impact of an extradition. Second, it does not apply to extradition for an existing conviction: this is both unprincipled and ignores the injustice of cases like Natalia Gorczowska, a mother-of-one sought over an old suspended sentence for a minor drug offence.[24]

At the other end, it was criticised from the EAW’s perspective. First, Malcolm argued that it breached the FDEAW, except to the extent that it followed the balance struck in HH. It plainly contradicted mutual trust, with opt-in consequences that are outlined below. Second, both Doobay and Malcolm asked how proportionality could be judged without undertaking precisely the arduous analysis that the EAW aims to avoid. For instance, a crime might be more serious in a particular state, or for a particular victim. Estimating the likely sentence would presumably require expert evidence. Worst of all, only in relatively minor cases could extradition possibly be disproportionate; consequently, the new bar will make these most minor cases the most expensive, litigated and lengthy ones.

The unreformed: fundamental rights

Whilst seeking to introduce a proportionality bar, the government is not legislating on an equally controversial issue: fundamental rights in issuing states. Under the ECHR, evidence of a ‘flagrant denial of justice’ in the accused’s trial is required to show this.[25] Yet, McVeighargued, this faith in Member States’ conditions was as much a myth as mutual trust: between 2007-2012, a breach of ECHR Articles 5 or 6 was found in over 500 criminal cases by the ECtHR. Again, a tension exists between mutual trust and defendants’ rights.

Overall, the UK’s reforms in these three key areas did not impress the panel. May’s more modest reforms, which follow, were more warmly received.

Other reforms: trial readiness, leave to appeal, and specialty

First, ‘trial readiness’: under UK law, a prosecution EAW must be issued for ‘the purpose of’ prosecution’.[26] This is potentially extremely wide. The Symeou case showed the dangers of this approach, said McVeigh. Symeou spent two years confined to Greece (eleven months in jail) having been extradited from Britain, before being acquitted at trial. The proposed reforms, which Doobay noted was borrowed from Irish law, allow extradition only where a decision to charge or try had been made.[27] Unlike the Irish Act, it has an exception where the accused’s absence is the sole reason they have not been charged: this author adds that this closes a loophole that would otherwise open via the Assange case.[28]

Presently, an EAW extradition order may be appealed to the High Court by right. This is subject to a strict seven-day time limit. Under the proposed reforms, leave to appeal would become required; balancing this, appeals out of time would be possible where the accused had done ‘everything reasonably possible’ to appeal in time.[29] This relaxation was necessary, said Doobay; indeed, it codified the Supreme Court’s ruling in Lukaszewski that Article 6§1 ECHR required out-of-time appeals in exceptional circumstances, whilst removing that judgment’s potentially-discriminatory suggestion that this applied only to British citizens.[30] For McVeigh, the new leave requirement was very disappointing, and the relaxation, whilst welcome, did not go far enough: the Scott-Baker report’s more flexible test should be adopted.[31]

Under the specialty doctrine, an extradited person may only be tried for the offence for which he was extradited, subject to limited exceptions. Doobay noted that under the current law, consenting to extradition constitutes a waiver of specialty.[32] This discourages accused persons from consenting where they otherwise would, causing costly delay. May’s reforms would remove this rule.[33] This author notes that this abolition is likely to breach the FDEAW, although the relevant articles are unclearly drafted.[34]

Opt-outs

Whilst the panel found parts to praise in these reforms, then, the prevailing image was negative: the forum bar was broadly bluster, the absence of a stronger fundamental rights bar was disappointing, and the proportionality bar potentially breached the FDEAW.

Malcolm argued that this last point was particularly problematic: not only might infringement proceedings against the UK be brought once the CJEU gains jurisdiction in December 2014, but more urgently the Commission might reject Britain’s application to opt back in to the EAW after exercising its mass opt-out of pre-Lisbon criminal measures in 2014.[35]

Upon leaving the EAW, the UK’s extradition framework would be entirely unclear, Malcolm continued. It might revert to the pre-EAW system, as one Parliamentary committee expected; or it might need to move straight to a successor system, as another did.[36] Spencer agreed with the latter; renegotiation with all 27 Member States would likely be necessary, and in the chaos, the UK would become a ‘new Costa Del Crime with poor weather’.

EU-level reform

Moving away from the UK’s unilateral reforms, there are two sides to the European answer to the EAW’s deficiencies. The first, McVeigh said, was harmonisation. In addition to 2013’s directive on the right of access to a lawyer, three directives on suspects’ rights were recently proposed.[37] By raising guaranteeing minimum procedural rights across Europe, these may provide one answer to the question of human rights.

The second is, like the UK’s reforms, a loosening of mutual trust. The European Parliament primarily justifies this as a question of implementation, Doobay said.[38] The UK is not the only state to deviate from the FDEAW because of proportionality and human rights concerns. Come December 2014, when the Commission can bring FDEAW-related enforcement proceedings, these contradictions will come to a head.[39] By relaxing the FDEAW’s strictures before then, these clashes might be avoided. McVeigh noted that this move away from mutual trust could be seen in the agreed text of the European Investigation Order, which includes a standalone provision on fundamental rights.[40]

For two reasons, this loosening of mutual trust might not undermine the EAW, as the Commission feared. First, asDoobay noted, some proportionality bar must exist.[41] Mutual trust, therefore, simply must yield; the only question is how far. Second, McVeigh argued that by refusing to execute a warrant for failure to reach basic fair trial standards, the executing state encourages the issuing state to reach those standards. A rights review could, then, complement mutual trust: it constituted an investment in, not a rejection of, integration.

Conclusion

In his final remarks, Spencer returned to the question of harmonisation. Britain should recognise that the EAW has revealed rather than caused these European problems. As the Confait case showed, the UK was not born free of original sin in pre-trial procedure, but has successfully improved over the years. Far from opting out of the EAW system, she ought to leadEurope in reaching the same standard.[42]

[4] 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States; Ibid., Recitals 5 and 6; See generally S Peers, EU Justice and Home Affairs Law 3rd edn (Oxford, OUP, 2011), pp693-710.

[13] 6.28-6.30, 6.68 on prosecution (but cf 6.43), and 6.77-80 conclusions; in a striking parallel, s43 of the same Act alters self-defence law in a way that would not have affected the Martin and Hussain cases underlying calls for reform.

[42]R v Lattimore, Salih and Leighton (1975) 62 Cr App R 53; Report of an Inquiry by the Hon. Sir Henry Fisher into the circumstances leading to the trial of three persons on charges rising out of the death of Maxwell Confait and the fire at 27 Doggett Road, London SE 6 (H.C.P. 90 of 1977-78).

On 29th January 2013, the Court of Justice of the European Union (CJEU) delivered its judgment in the Radu case.[i] In this case the Court was asked to interpret the Framework Decision on the European Arrest Warrant (FDEAW) through the prism of the Charter of Fundamental Right of the European Union (the Charter) and the European Convention of Human Rights (ECHR).

While this judgment was expected to open the door to a more human rights-enshrined interpretation of the European Arrest Warrant (EAW), the Court seems to have skipped this chance.

European Arrest Warrant basics

The EAW is the first EU criminal law instrument based on the principle of mutual recognition, the so-called cornerstone of European Criminal Law. Having provoked constitutional concerns for abolishing the requirement of double criminality for a list of offences, after ten years it is still here accompanied by the never-ending debate.

The EAW is in fact a judicial decision, issued by the judicial authorities of one Member State (MS), requesting the arrest and surrender of a person from the judicial authorities of another MS for the purposes of (a) conducting a criminal prosecution (b) executing a custodial sentence or (c) detention order. It replaced a slow and politicised mechanism of interstate cooperation in view of the need of faster extradition in the EU internal market. This mechanism is based on the assumption of advanced confidence between the Member States.

Therefore, the state executing the EAW is under the obligation to arrest the wanted person and surrender him to the issuing state, except where the grounds for refusal listed in the FDEAW exists. What usually strikes lawyers is that there is no specific ground for refusal for human rights violations by the issuing authority, which gives no choice to the executing authority but to arrest and surrender the requested person even in the case that the act he committed does not constitute an offence in the executing state and even if his fundamental rights were not observed by the issuing state or there is a high risk of them being violated in view of the bad human rights protection record of this state.

Hence, a new argument has emerged in the light of the de-pillarisation of EU criminal law after the Lisbon Treaty and after the binding effect was given to the Charter. This new argument attempts to establish that the interpretation of the FDEAW should be enriched by the respect for fundamental rights as illustrated by the Charter. Also, the Commission in its latest implementation report[ii] states that ‘the framework decision does not mandate surrender where an executing judicial authority is satisfied…that such surrender would result in breach of a requested person’s fundamental rights arising from unacceptable detention conditions’.

This view is further supported considering the recent N.S. judgment of the CJEU. This case concerns the EU asylum system which is also based on the same principle of mutual recognition as the EU extradition system. The Court ruled that the Member states may not transfer an asylum seeker to the Member State responsible, where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment.

Facts of Radu

So, in our story, Mr Radu was a Romanian national, subject to four arrest warrants, issued by the German judicial authority for the purpose of conducting criminal prosecutions in respect of acts of robbery. As he did not consent to his surrender, he claimed that the contested warrants were issued without him having been summoned or having had a possibility of hiring a lawyer or presenting his defense, in breach of Articles 47 and 48 of the Charter and Article 6 of the ECHR.

He argued that the FDEAW and the law implementing it should be interpreted in view of the provisions of both the Charter and of the ECHR. If the judicial authorities of the executing Member State discovered that the fundamental rights were not observed by the issuing authorities, they would be justified in refusing to execute the EAW concerned, even if FDEAW does not expressly provide for that ground for non-execution.

In a nutshell, the questions raised highlight three main issues. Firstly, they involve the different interpretation of the FDEAW in light of the Treaty of Lisbon and the Article 6 TEU and question whether the Charter and the ECHR form part of the primary EU law. Secondly, the questions concern the issue of deprivation of liberty of the requested person, as part of the procedure leading to the execution of the EAW. Since it interferes with the right to liberty and security of a person (Article 6 Charter and Article 5 ECHR read in conjunction with Articles 48 and 52 Charter) the CJEU was asked whether if this is actually necessary and proportionate to the objective pursued in a democratic society. Thirdly, they ask whether, through the prism of this new interpretation, the executing judicial authority can refuse to execute the EAW in the event of breaches of human rights legislation.

Opinion of Advocate General

The Advocate General Sharpston in her well reasoned opinion[iii] interestingly claimed with regard to the first issue that rights emanating from the Charter constitute part of the primary EU law, while the rights originating from the ECHR constitute general principles of EU law.

In respect of the second issue, the Advocate General argued that the deprivation of liberty and the forcible surrender of the person, following the execution of the EAW, especially issued for the purpose of criminal prosecutions, constitute interference with the person’s right to liberty as it is safeguarded by the Article 5 ECHR and Article 6 Charter. For this reason, it should not be arbitrary. The factors which should be taken account include the good faith in which the detention should be performed, the fact that it should be interrelated to the ground of the detention (suitability and effectiveness), the place should be appropriate and the length reasonable (necessity and least restrictive measure test).

With reference to the third point, the Advocate General Sharpston argued that the executing judicial authority could refuse to execute a warrant, when it is demonstrated that the rights of the requested person have been infringed or will be infringed and, in the current case with regard to Articles 6, 47 and 48 Charter, the infringement should be such fundamental that would destroy the fairness of the process.

Judgment

The judgment did not follow the structure of the questions or the conceptual structure given by the Advocate General, confusing its reader despite its short length. However, this is the least, considering that it limited the scope of the preliminary reference and that certain questions remained unanswered.

The CJEU appeared to accept that the Charter constitutes primary law but, according to the Court, the observance of rights enshrined in Articles 47 and 48 of the Charter does not require that the executing authority could refuse the execution of the EAW (Para 39). The Court attempted to clarify in advance that the Radu case related to an EAW issued for the purpose of conducting criminal prosecutions and not for the execution of a custodial sentence (Para 28). Then, it reiterated that the EAW was adopted so that it would simplify the extradition and for its operation which is based on the principle of mutual recognition, states should have mutual trust. Therefore, states cannot flee from an EAW request (Para 33-35).

With respect to grounds of refusal it remained loyal to the letter of the instrument. It left no space for any interpretation enlightened by the Charter sun or even by the Article 1(3) of the Framework Decision on EAW, read in conjunction with Article 6 TEU and the corresponding Charter provisions. Moreover, in an attempt to deepen this view and further justify it, it claimed that if the person was to be heard before the issuing authority, this would inevitably affect the effectiveness of the instrument. This is because the EAW is based on surprising the wanted person so that he could not catch a flight and flee (!) (Para 41). Finally, pursuant to the Court there is always the executing authority to hear the requested person.

Regarding the issue of whether the deprivation of the person’s liberty accompanying the process of arrest interferes disproportionately with the right to liberty and security, the Court just ruled that it is related to the debate on the defense rights. Thus the Court claimed that the issue does not necessitate special attention, tackling the request to address the breach of those articles (Para 30).

Therefore, in contrast to the opinion of Advocate General Sharpston, according to the Court the FDEAW should be interpreted in such a way so as not to allow the executing authority to refuse the execution of a EAW issued for the purpose of criminal prosecution on the ground of violation of the requested person’s right to be heard.

Comment

The Radu judgment surprised EU criminal lawyers anticipating the post-Lisbon effect on the interpretation of the EAW for its minimalistic and narrow approach. It was an unexpectedly short judgment given the number and the significance of the questions. The Court avoided the substance of the burning issues and narrowed down the scope of the references, causing further questions.

Firstly, it should be noted that the judgment contradicted the Advocate General opinion and the previous CJEU ruling in N.S. case, where it had clarified that the EU asylum system cannot operate on the basis of a “conclusive presumption” that all EU Member States “observe the fundamental rights of the European Union” (Para. 105). In Radu, the Court, based on this conclusive presumption, repeated the need and the obligation of Member States to have mutual trust to each other, in contrast to the abovementioned N.S. judgment. One would wonder here, whether the fact that the issuing state was Germany in this case facilitated the Court to follow this ruling and whether it would have adjudicated differently if the issuing country was one of the so-called ‘non-safe countries’.

The first paragraph of the Court is also noteworthy, since the Court stated that the warrant was issued for the purpose of a prosecution and not for the execution of a custodial sentence. This triggers the question whether the ruling would be different if this was the case of an EAW issued for the execution of a custodial sentenceand Mr Radu was requested for this purpose? Would the Court have defied the mutual trust obsession?

Moreover, the Court, after exposing the reasons leading to the adoption of the EAW, argued that if the issuing authority would be required to hear the requested person, this would lead to the failure of the system. The framework decision’s preamble articulates that the extradition procedures should be speeded up in respect of persons suspected of having committed an offence and trying to escape from justice. This is why the system’s key method is to surprise the requested person so as not to allow the possibility of run away (Paras 40, 41). This reasoning, realistic as it may sound in a Europe without internal borders, lacks the most principal constitutional ground. The principle of presumption of innocence, as enshrined in the Article 48 of the Charter and 6(2) ECHR, pronounces that ‘everyone who has been charged shall be presumed innocent until proved guilty according to law’. Isn’t surprising a suspect with the aim of arresting him, then surrendering him to another Member State in order to prosecute him, without any hearing at odds with the presumption of innocence?

The Court’s response was that the person can be heard by the executing judicial authorities. Someone would wonder at this point which the options of the judicial authorities really are, as the Court previously ruled that the states cannot flee from the EAW mechanism which does not provide a ground for refusal for human rights violations (Para 41) So, the scope of the person’s right to be heard is really limited to this point.

Finally, a question of constitutional importance was submitted which finally remained unanswered. The Court skipped the question on whether

the interference on the part of the State executing a EAW with the rights and guarantees laid down in Article 5(1) of the [ECHR] and in Article 6 of the [Charter] (:right to liberty), read in conjunction with Articles 48 (:presumption of innocence) and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR] (:fair trials rights), satisfy the requirements of necessity in a democratic society and of proportionality in relation to the objective actually pursued.

This could have been a chance for the Court to throw light on the ill-defined constitutional principle of proportionality in relation to the objective actually pursued through legislation in the context of European criminal law.

Due to those remaining question marks, the judgment was surprising and somewhat disappointing. Trying to explain the mystery of this analysis, we could hypothesize that the Court might have been aware of the domino effect of a different ruling on the principle of mutual recognition, the foundation of the whole mechanism. This effect, given the lack of a clearly delineated ground for refusal for the execution of EAW in the event of human rights breaches, could be an open-ended one, especially if there is no political will to reform the measure soon.

[ii] Report from the Commission to the European Parliament and the Council, On the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Brussels, 11.4.2011 COM(2011) 175 final